Due to activist lawsuits, US gov’t wants to keep our metadata longer

"A more limited retention of the [business records] metadata is not possible."

As a result of the myriad of pending lawsuits challenging the legality of the National Security Agency’s bulk metadata collection program, the United States government now wants to keep its records beyond the existing five-year limit.

As the government argued Tuesday in its 14-page court filing (PDF) in the Foreign Intelligence Surveillance Court:

Based upon the issues raised by Plaintiffs in the above-referenced lawsuits and the Government’s potential defenses to those claims, the United States must ensure that all potentially relevant evidence is retained which includes the [business records] metadata obtained in bulk from certain telecommunications service providers pursuant to this Court’s production orders. To meet this obligation, the Government seeks an order that would allow the NSA to retain the [business records] metadata for non-analytic purposes until relieved of its preservation obligations or until further order of this Court under the conditions described below. Based upon the claims raised and the relief sought, a more limited retention of the [business records] metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that [business records] metadata specifically relevant to the identified lawsuits.

Of those, the judge in just one case so far has declared the bulk metadata dragnet as unconstitutional. As we reported in December 2013, a federal judge’s order granted an injunction to shut down the metadata program, and it required the government to destroy the metadata collected on the plaintiffs' accounts.

However, such a shutdown will only happen if an appeals court agrees with that federal judge, Judge Richard Leon, who has stayed the injunction pending appeal in Klayman v. Obama, "in light of the significant national security issues at stake in this case and the novelty of the constitutional issues."

Update: EFF issued a reaction to the government's Tuesday filing saying, "We agree with the government in principal that they're under an obligation to preserve evidence, but we're a bit confused as to why this filing in the FISC and inquiries from the press are the first we've heard about the issue. They never approached us to discuss it, but we would certainly be open to discussing a reasonable solution. But it's disheartening to see the government try to hold the privacy of all Americans hostage to score PR points."